Opinion

Pamela Messal v. Department of Agriculture

Court: Merit Systems Protection Board
Filed: Mar 19, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

PAMELA MESSAL, DOCKET NUMBER

Appellant, DE-0752-20-0137-I-1

DEPARTMENT OF AGRICULTURE, DATE: March 19, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Ryan C. Nerney , Esquire, Ladera Ranch, California, for the appellant.

Stephanie Rapp-Tully , Esquire, Washington, D.C., for the appellant.

Julie Nelson , Esquire, Golden, Colorado, for the agency.

Rayann Brunner , Esquire, Albuquerque, New Mexico, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

sustained her removal. Generally, we grant petitions such as this one only in the

following circumstances: the initial decision contains erroneous findings of

A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

material fact; the initial decision is based on an erroneous interpretation of statute

or regulation or the erroneous application of the law to the facts of the case; the

administrative judge’s rulings during either the course of the appeal or the initial

decision were not consistent with required procedures or involved an abuse of

discretion, and the resulting error affected the outcome of the case; or new and

material evidence or legal argument is available that, despite the petitioner’s due

diligence, was not available when the record closed. Title 5 of the Code of

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully

considering the filings in this appeal, we conclude that the petitioner has not

established any basis under section 1201.115 for granting the petition for review.

Therefore, we DENY the petition for review. Except as expressly MODIFIED to

incorporate the proper standards for the appellant’s claims of discrimination and

reprisal for equal employment opportunity (EEO) activity, and to supplement the

whistleblower reprisal analysis, we AFFIRM the initial decision.

The appellant most recently held the position of Supervisory Forestry

Technician. Initial Appeal File (IAF), Tab 10 at 19. In this fire management

position, she supervised approximately 20 individuals that made up a “Hotshot

Crew.” IAF, Tab 11 at 22.

In November 2019, the agency proposed the appellant’s removal based

upon five charges, i.e., Charges A-E. IAF, Tab 11 at 4-17. The appellant

presented a written response, IAF, Tab 17 at 5-15, and an oral response, IAF, Tab

10 at 30-45. In December 2019, the deciding official sustained all the charges

and the proposed penalty. Id. at 20-29.

The appellant timely filed the instant appeal to challenge her removal.

IAF, Tab 1. The administrative judge developed the record and held a 4-day

hearing. E.g., IAF, Tabs 46, 51, 56, 59. She then issued an initial decision in

March 2022, affirming the appellant’s removal. IAF, Tab 70, Initial Decision

(ID).

For Charge A, absence without leave (AWOL), the administrative judge

found that the agency proved all its specifications. This included specifications

1-10, which concerned absences between March 4-15, 2019, ID at 7-13, as well as

specifications 11-12, which concerned absences on October 23-24, 2019, ID at

13-19. Regarding these latter specifications, the administrative judge further

found that this portion of the agency’s AWOL charge merged with the entirety of

Charge D, failure to follow leave procedures, which concerned the same dates.

ID at 13-14.

For Charge B, conduct unbecoming a supervisor, the administrative judge

found that the agency proved each of its three specifications. ID at 19-23.

Broadly speaking, each alleged a particular instance of the appellant changing the

working conditions of the same subordinate for the worse without a legitimate

reason for doing so. IAF, Tab 11 at 5. After the agency selected the subordinate

for promotion over the appellant’s objection, she is alleged to have needlessly

taken the subordinate’s second monitor, removed his gear from a cabinet he had

long used, and instructed him to move his workspace out of an office and into a

hall. Id. at 5, 14.

For Charge C, failure to follow supervisory instructions, the administrative

judge found that the agency proved specifications 1-9 and 11-13, ID at 23-32, but

not specification 10, ID at 30. Of those sustained, specification 9 concerned an

instruction to attend a meeting, while all others concerned separate instructions

about submitting or correcting the appellant’s time and attendance reports.

IAF, Tab 11 at 5-7.

For Charge E, failure to follow agency policy, the administrative judge

found that the agency failed to meet its burden. ID at 32-33. This charge

concerned an allegation that the appellant recorded conversations with coworkers

without permission to do so. IAF, Tab 11 at 7.

The administrative judge next considered but rejected the appellant’s

various affirmative defenses. This included claims of a due process violation or

harmful error, ID at 33-35, disability discrimination based on a failure to

accommodate, ID at 35-38, disability discrimination based on disparate treatment,

ID at 38-39, sex discrimination, ID at 40-41, reprisal for filing EEO complaints

and Occupational Safety & Health Administration (OSHA) complaints,

ID at 41-42, and reprisal for whistleblowing, ID at 42-46. Finally, the

administrative judge found that the agency met its burden of proving the requisite

nexus and reasonableness of its penalty. ID at 46-50.

The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 1. First, she argues that the administrative judge erred by not

sanctioning the agency for disclosing certain information to witnesses before the

hearing. Id. at 4, 12-14. Next, the appellant disputes the charges. Id. at 14-22.

She then reasserts claims of a due process violation or harmful error, id. at 22-24,

disability discrimination, id. at 24-25, sex discrimination, id. at 25-27, reprisal for

filing EEO and OSHA complaints, id. at 27-29, and reprisal for whistleblowing

disclosures or activities, id. at 29-30. Lastly, the appellant challenges the

reasonableness of her removal as the penalty. Id. at 30-33. The agency has filed a

response to the agency’s petition. PFR File, Tab 4.

The administrative judge did not abuse her discretion in denying the appellant’s

motion for sanctions or err in analyzing the testimony giving rise to the motion

for sanctions.

It is undisputed that the agency provided several witnesses with access to

various pleadings before they appeared to testify at the hearing that was to occur

over video conference. IAF, Tab 68 at 1; Hearing Transcript, Day 1 (HT1)

at 8-28. This fact was revealed at the start of the hearing. E.g., HT1 at 8-12.

The administrative judge acknowledged that this could have prejudiced the

witnesses, and she indicated that she would take the matter into account as she

weighed the probative value of their testimony. HT1 at 12-15.

The appellant moved to sanction the agency and exclude the testimony of

these witnesses based on the agency’s disclosure of such documents to the

agency’s witnesses. HT1 at 29-30; IAF, Tab 61. The administrative judge denied

the motion. IAF, Tab 68 at 1-2. She described conducting an exhaustive review

of the record and testimony of the witnesses at issue and found no credible

evidence that the witnesses were influenced by their improper access to portions

of the record. Id.

On review, the appellant argues that the administrative judge erred in

denying her motion for sanctions. PFR File, Tab 1 at 4, 12-13. Alternatively, the

appellant argues that the administrative judge failed to properly account for the

witnesses’ access to pleadings when analyzing the credibility of their testimony.

Id. at 13-14. We are not persuaded.

Absent an abuse of discretion, the Board will not reverse an administrative

judge’s determination regarding sanctions. Lee v. Department of Veterans

Affairs, 2022 MSPB 11, ¶ 9. In this instance, the administrative judge recognized

the agency’s actions, acknowledged that providing the pleadings to the witnesses

might bias their testimony, allowed both parties to develop the issue, and

considered the matter to determine the degree of prejudice. The administrative

judge acted appropriately in recognizing that the agency’s actions were

potentially problematic, and permitted the appellant’s counsel to explore the issue

through cross-examination of each witness. HT1 at 17. We find no abuse of

discretion in her resulting denial of the appellant’s motion for sanctions. E.g.,

HT1 at 8-9, 14.

Turning to the administrative judge’s credibility findings, we also find no

error. The Board must give deference to an administrative judge’s credibility

determinations when they are based, explicitly or implicitly, on the observation of

the demeanor of witnesses testifying at a hearing; the Board may overturn such

determinations only when it has sufficiently sound reasons for doing so.

Karnes v. Department of Justice, 2023 MSPB 12, ¶ 13. The appellant suggests

that we should overturn the administrative judge’s credibility findings because

they did not explicitly discuss the fact that certain witnesses had access to the

agency’s pleadings. PFR File, Tab 1 at 13-14. While the administrative judge

may not have explicitly discussed that fact in her credibility findings, she did

discuss it in her post-hearing Motion for Sanctions and Motion to Strike

Testimony ruling. As mentioned above, she found that the access by four of the

witnesses to some of the pleadings and the appellant’s deposition did not

influence witness testimony. IAF, Tab 68 at 1-2. Moreover, the administrative

judge made credibility determinations that were at least partially based upon

witness demeanor. E.g., ID at 6, 48. Broadly speaking, she found that the

agency’s witnesses provided direct testimony that was consistent with evidence of

record while the appellant provided “extremely evasive” testimony that was

inconsistent with the record and not believable. Id. We discern no basis to

conclude otherwise.

The appellant has not shown that the administrative judge erred in her analysis of

the charges.

On review, the appellant continues to dispute at least some of the charges

and specifications that the administrative judge sustained. PFR File, Tab 1 at

14-22. We will address each in turn.

Charge A, AWOL, and Charge D, Failure to Follow Leave

Procedures 2

As further detailed in the initial decision, the period leading up to the

appellant’s first period of AWOL, from March 4-15, 2019, was one in which a

subordinate filed a harassment claim against the appellant and the appellant

complained that she had been subject to a hostile work environment, resulting in a

supervisor filing a claim on the appellant’s behalf. ID at 7. Citing the complaint

against the appellant, the agency temporarily reassigned her as it investigated.

ID at 8. In the period that followed, the appellant requested administrative leave,

As previously noted, the administrative judge merged Charge D with

specifications 11-12 of Charge A, and we agree with her having done so.

which the agency denied. Id. Rather than appearing and working in her

temporary assignment, the appellant used other leave for many months. Id.

In February 2019, the appellant submitted another request for annual leave

for March 4-16, 2019, which her supervisor denied, noting that the appellant had

been absent since October 2018, and indicating that there was work that needed to

be done. IAF, Tab 11 at 36. The appellant then submitted a request for accrued

or advanced sick leave for March 4-26, 2019. Id. at 42. Within the

accompanying comments section, the appellant remarked as follows: “Personal

[r]easons. Request related to workplace sexual harassment & continued

harassment & relation relating to such.” Id. She attached a note from a nurse

practitioner that simply stated that the appellant would be absent throughout the

period “due to illness.” Id. at 43. The agency denied this leave request, noting

that the appellant did not have any sick leave remaining, and warning that she

would be AWOL if she did not return to work. Id. at 46. Nevertheless, the

appellant did not return to work. On March 11, 2019, the appellant emailed the

agency, suggesting that the denial of her leave requests amounted to harassment

or reprisal, stating that she had an otherwise unidentified “family emergency,”

and stating that she was also “ill.” Id. at 48. Then, on March 17, 2019, she

emailed the agency, stating that she was still “ill,” and that she was “looking into

FMLA.” Id. at 51.

For specifications 1-10 of the AWOL charge, concerning March 4-15,

2019, the administrative judge found that the agency met its burden. ID at 7-13.

Among other things, she noted that the record contained a request for FMLA

leave and associated documentation for some subsequent periods, but not the

March 4-15 AWOL days. ID at 11-13.

On review, the appellant references that FMLA documentation, dated

April 29, 2019, and suggests that it should cover the March 4-15 AWOL period.

PFR File, Tab 1 at 16-17 (referencing IAF, Tab 11 at 113-16). The appellant is

effectively arguing that the agency should have retroactively granted her FMLA

leave even though she never requested FMLA leave for the relevant period.

We disagree and find that the agency was under no such obligation. The Office

of Personnel Management’s implementing regulations provide that an employee

may not retroactively invoke FMLA leave, absent an exception pertaining to

medical inability that does not apply here. 5 C.F.R. § 630.1203(b).

Turning to specifications 11-12 of the AWOL charge, which concerned

October 23-24, 2019, the administrative judge also found that the agency met its

burden. ID at 13-19. As further detailed in the initial decision, these were dates

the appellant failed to appear for work after her supervisor had denied her request

to telework so that she could work on her EEO matters from home and had

scheduled an in-person meeting with the appellant. ID at 15-18. The appellant

submitted a doctor’s note at some point after the fact, indicating that she should

be excused from work. IAF, Tab 37 at 12-13.

On review, the appellant argues that she was entitled to FMLA leave or

leave without pay (LWOP) for the October 23-24 dates in question. PFR File,

Tab 1 at 21-22. The administrative judge found that the appellant did not request

leave at the time, ID at 17, and the appellant has not directed us to any evidence

to the contrary. The appellant suggests that the agency should have nevertheless

assumed that her absence on October 23-24 was related to approved FMLA leave

from months earlier. Id. at 21. Alternatively, the appellant argues that the

agency was required to grant her LWOP. Id. at 21-22. We disagree.

Leading up to the dates in question, the appellant made no mention of a

medical need for leave. She instead asked to work on her EEO matters from

home, and then accused her supervisor of abuse when the supervisor indicated

that the appellant needed to come to the office. E.g., IAF, Tab 12 at 204-06.

On the morning of October 23, the appellant sent her supervisor three emails in

which she again requested telework to pursue her EEO matters, and again accused

her supervisor of harassment when the supervisor once again indicated that she

expected the appellant in the office. Id. at 213, 215, 218, 221, 223. In an

afternoon email, her fourth of the day to her supervisor, the appellant stated that

she was ill and going to the doctor due to the supervisor’s abuse. Id. at 223.

The appellant separately sent an email to other officials indicating that she was at

her local police station to file a report of threats or abuse by her supervisor.

Id. at 221, 229. She did not request leave in any of these emails, at which point

she was already AWOL. We found nothing showing that the appellant indicated

that she was entitled to FMLA leave later that day or the next when she was also

AWOL. In fact, it is not even apparent that the appellant had FMLA leave

remaining by the time of these absences. Compare IAF, Tab 11 at 119 (approving

the appellant’s request for FMLA leave for the period between March 18 and

June 16, 2019), with 5 C.F.R. § 630.1203 (describing an employee’s entitlement

to 12 weeks of FMLA leave during any 12-month period). Accordingly, we do

not find that the agency was obligated to retroactively place her in an FMLA

leave status, without any associated request by the appellant.

Regarding the appellant’s alternative argument, about LWOP, the Board

will consider whether an agency’s denial of LWOP, a category of leave which is

discretionary, was reasonable in some circumstances involving medical excuses.

Sambrano v. Department of Defense, 116 M.S.P.R. 449, ¶ 4 (2011).

Here, though, the appellant did not request LWOP for October 23-24, 2019.

Even if she had, we would find the agency’s denial of LWOP reasonable, given

the appellant’s many months of prior absences and the well-documented

circumstances surrounding her October 23-24 absence.

Charge B, conduct unbecoming a supervisor

To recall, each specification of the conduct unbecoming a supervisor

charge alleged a particular instance of the appellant changing the working

conditions of the same subordinate for the worse, without a legitimate reason for

doing so. IAF, Tab 11 at 5. The agency alleged that she removed a second

monitor the subordinate had been using, which was the private property of

another employee, only to place it in her own office unused, she instructed the

subordinate to remove his gear from a cabinet he had personally recovered from a

dumpster and used for years, and she directed the subordinate to vacate a shared

office and move his workspace into a hallway. Id.

On review, the appellant argues that these allegations were false or that her

conduct was not unbecoming. PFR File, Tab 1 at 17-19. To do so, she presents

several brief arguments. For example, the appellant reasserts her own testimony

and she challenges written statements by other witnesses because they signed

their statements without also initialing each page. Id. at 18-19. The appellant

also speculates that one witness may have been motivated to provide false

allegations so that he could take over the appellant’s position after her removal.

Id. at 19. Additionally, the appellant describes the acts as minor discretionary

decision making. Id.

We are not persuaded. Although the appellant testified that she removed

the subordinate’s monitor and access to the cabinet for the sake of fairness to

other employees, the administrative judge did not find that explanation credible,

especially when compared to the appellant’s prior explanations about the matters

and other witness testimony or statements about the surrounding circumstances.

ID at 19-21. For similar reasons, the administrative judge did not find the

appellant’s testimony about moving the subordinate’s work location for the

purpose of better communication among employees to be credible. ID at 22 -23.

The appellant’s brief arguments, such as her reassertion of her own testimony and

speculations about the motivations of others, do not provide a basis for disturbing

the administrative judge’s findings, which are grounded in credibility

determinations. See Karnes, 2023 MSPB 12, ¶ 13.

Charge C, failure to follow supervisory instructions

We next turn to the failure to follow supervisory instructions charge, of

which the administrative judge sustained specifications 1-9 and 11-13.

ID at 23-32. Broadly speaking, specifications 1-9 and 12-13 concerned different

dates and instructions that the appellant failed to follow pertaining to her time

and attendance reports. IAF, Tab 11 at 5-7. Specification 11 concerned the

appellant failing to appear after being instructed to attend a meeting. Id. at 6.

On review, the appellant challenges specifications 1-6, which are specific

to instructions between March 27 and June 10, 2019, asserting that she was

entitled to FMLA leave throughout that period so any instructions relating to her

submission of time and attendance reports were improper. PFR File, Tab 1 at 20.

We disagree. Throughout this time, the appellant was active in terms of her time

and attendance reports, so we discern no basis for concluding that it was improper

for the agency to give her instructions about the same.

For example, in specification 1, the agency instructed the appellant to

update her time and attendance report to reflect her new first-level supervisor.

IAF, Tab 11 at 53. Within hours, the appellant defied that instruction, choosing

her fourth-level supervisor as the individual listed as her supervisor for time and

attendance reporting. Id. at 55. It is therefore apparent that the appellant was not

incapacitated or otherwise unable to receive and respond to the instruction,

despite the appellant’s insinuation to the contrary.

In specification 2, the appellant and her supervisor exchanged numerous

emails about her time and attendance report covering the March 2019 AWOL

period. IAF, Tab 11 at 65-70. Her supervisor explained that the appellant’s

reporting of LWOP for the days at issue was not approved and needed to be

changed to reflect her AWOL status, whereas the appellant disagreed. Id. Again,

there is nothing in the record suggesting that the appellant was incapacitated and

unable to follow the instructions, or that it was otherwise improper for the agency

to instruct the appellant to correct her erroneous time and attendance reporting.

The appellant also challenges specifications 12-13, stating that she was not

AWOL, so the instructions to amend her timesheet to include AWOL hours were

not proper. PFR File, Tab 1 at 21. But as the administrative judge correctly

determined that the appellant was AWOL for those hours, we find the appellant’s

reliance on a contrary conclusion to be unavailing. 3

The appellant did not prove her affirmative defenses.

As previously stated, the appellant’s petition for review reasserts claims of

a due process violation or harmful error, PFR File, Tab 1 at 22-24, disability

discrimination, id. at 24-25, sex discrimination, id. at 25-27, reprisal for filing

EEO and OSHA complaints, id. at 27-29, and reprisal for whistleblowing,

id. at 29-30. We will address each in turn.

Due process or harmful error

On review, the crux of the appellant’s due process and harmful error

argument is that the response period for her proposed removal was too short.

PFR File, Tab 1 at 22-24. The agency proposed her removal on November 13,

2019. IAF, Tab 11 at 4-8. The proposal indicated that the appellant could submit

a response within 7 calendars days, while also scheduling a meeting November

21, 2019, for purposes of any oral response. Id. at 8. Although the appellant

sought an extension of at least a week, the agency denied that request. IAF, Tab

33 at 4-8. 4

To the extent that the appellant is suggesting that the agency committed a

harmful error, she has not carried her burden. A harmful error is an error by the

agency in the application of its procedures that is likely to have caused the

agency to reach a different conclusion from the one it would have reached in the

absence or cure of the error. Semenov v. Department of Veterans Affairs, 2023

The appellant has not presented any argument about specifications 7-9 and 11, and we

discern no error in the administrative judge’s conclusion that the agency met its burden.

PFR File, Tab 1 at 20-21. The appellant does present arguments on review about

specification 10, PFR File, Tab 1 at 20-21, but that is the specification the

administrative judge did not sustain, ID at 30, so we need not further consider the

matter.

The record suggests that the agency denied the request for extension because of the

deciding official’s limited availability and the agency’s belief that an unidentified

Executive Order required that it issue a decision within 14 days of the proposed

removal. IAF, Tab 33 at 5.

MSPB 16, ¶ 23. Here, the appellant has not identified any agency procedure that

it erred in applying or that any such error was harmful.

To the extent that the appellant is suggesting that the agency committed a

due process violation, we are not persuaded. The essential requirements of

constitutional due process for a tenured public employee are notice of the charges

against her, an explanation of the evidence, and an opportunity for her to present

her account of events. Cleveland Board of Education v. Loudermill, 470 U.S.

532, 546 (1985). The Board has further stated that due process requires, at a

minimum, that an employee being deprived of her property interest be given the

opportunity to be heard at a meaningful time and in a meaningful manner.

Palafox v. Department of the Navy, 124 M.S.P.R. 54, ¶ 9 (2016). 5

Here, the agency provided 7 days for the appellant to respond to her

proposed removal, and she responded within that period. IAF, Tab 10 at 30-45,

Tab 17 at 5-15. The appellant nevertheless suggests that she was unable to

provide a meaningful response in that amount of time because the documentation

attached to her proposed removal was extensive and she needed to gather

documentation of her own. PFR File, Tab 1 at 23. However, the appellant has

not provided any further explanation. She has merely speculated that additional

time would have led to a better-prepared response. We find that the appellant’s

limited argument does not establish that the agency denied her due process.

See, e.g., Henderson v. Department of Veterans Affairs , 123 M.S.P.R. 536, ¶¶

1-13 (2016) (finding that an appellant who was given 7 days to respond to their

proposed adverse action was not denied due process), aff’d 878 F.3d 1044 (Fed.

Cir. 2017); Ronso v. Department of the Navy, 122 M.S.P.R. 391, ¶ 13 (2015)

(same); Ray v. Department of the Army, 97 M.S.P.R. 101, ¶ 22 (2004) (finding

that an appellant may have preferred a longer response period, the agency’s

Though not invoked by the appellant, there is a statutory requirement that an

individual such as the appellant be given “a reasonable time, but not less than 7 days, to

answer orally and in writing and to furnish affidavits and other documentary evidence

in support of” her response to the proposed removal. 5 U.S.C. § 7513(b)(2).

denial of an extension did not violate his due process rights), aff’d, 176 F. App’x

110 (Fed. Cir. 2006).

Disability discrimination

Turning to her claim of disability discrimination, the appellant also

presents limited argument. She asserts that agency officials “failed to fully

engage in the requisite interactive process” and that they “generally ignored her

medical conditions and requests for leave by continuously changing her [leave] to

AWOL.” PFR File, Tab 1 at 24-25. The appellant further asserts that the

administrative judge considered the motivations of the deciding official, without

considering whether any others who played a role in her removal may have been

motivated by her disability. Id. at 25.

Following the issuance of the initial decision, the Board clarified that an

appellant may prove disability discrimination by demonstrating that it was a

motivating factor in the contested personnel action. Pridgen v. Office of

Management and Budget, 2022 MSPB 31, ¶¶ 22, 40, 42. The administrative

judge found that the appellant did not present any credible evidence that her

disability motivated the agency’s removal action. ID at 38-39. In her petition,

the appellant is correct that the administrative judge’s discussion focused on the

deciding official, without mentioning any other agency official. PFR File, Tab 1

at 25; ID at 39. But the appellant has not elaborated by presenting argument or

evidence about the motivations of others, despite it being her burden to prove this

claim. PFR File, Tab 1 at 25. Accordingly, we find no reason to find that the

appellant proved that her disability was a motivating factor in the removal action

before us. 6

The administrative judge found that the appellant did not prove her failure

to accommodate claim because, inter alia, the appellant declined the agency’s

Because we find that the appellant failed to prove that disability discrimination was a

motivating factor in the agency’s action, we need not reach the question of whether the

appellant proved that it was a but-for cause of the agency’s action. Pridgen, 2022

MSPB 31.

offer to engage in the reasonable accommodation process. ID at 37-38.

The appellant’s petition for review does not identify any evidence to the contrary,

nor does it present substantive argument to the contrary. Her bare assertion that

the agency failed to fully engage in the interactive process is therefore

unavailing. See 5 C.F.R. § 1201.115(a) (providing that a petition for review must

identify specific evidence in the record demonstrating any alleged erroneous

findings of material fact and explain why the challenged factual determinations

are incorrect).

Sex discrimination

Like her disability discrimination claim, the motivating factor standard

applies to the appellant’s claim of sex discrimination, so we modify the initial

decision to incorporate this standard. Pridgen, 2022 MSPB 31, ¶¶ 20-22.

The administrative judge found that the appellant submitted a bare allegation but

no credible evidence that the agency’s actions were motivated by sex.

ID at 40-41. The appellant reasserts her sex discrimination claim on review, but

still presents little more than speculation that sex was a motivating factor in her

removal. PFR File, Tab 1 at 25-26. Without more, the appellant has not shown

that the administrative judge erred in denying this affirmative defense. 7

See 5 C.F.R. § 1201.115(a).

Reprisal for EEO complaints

Claims of retaliation for opposing sex discrimination in violation of Title

VII are analyzed under the same framework as a sex discrimination claim.

Desjardin v. U.S. Postal Service, 2023 MSPB 6, ¶ 32; Pridgen, 2022 MSPB 31,

¶ 30. However, a but-for causation standard is applicable to retaliation claims

based on activity protected under the Rehabilitation Act. .The but-for standard is

The only portion of the record the appellant cites is her written declaration from

below. PFR File, Tab 1 at 26 (referencing IAF, Tab 14 at 26-31). By itself, that

declaration is not persuasive, especially when accounting for the administrative judge’s

conclusion that the appellant regularly sought to manipulate information to create an

inaccurate narrative and was not credible. ID at 6.

more stringent than the motivating factor standard. Desjardin, 2023 MSPB 6,

¶ 31; Pridgen, 2022 MSPB 31, ¶ 47.

On review, the appellant correctly notes that the administrative judge’s

analysis for this claim also focused on the deciding official, without explicitly

discussing whether others may have been motivated to retaliate for her EEO

activity. PFR File, Tab 1 at 27; ID at 42. But she once again fails to provide any

substantive or persuasive argument to support her claim. Aside from summarily

asserting that some relevant officials were implicated by some of her EEO

activities, the appellant’s petition includes no substantive argument or reference

to evidence that would prove by preponderant evidence that her EEO activity was

even a motivating factor in her removal. 8 Id. at 28-29. We therefore find that the

appellant has not met her burden.

Reprisal for OSHA complaints

To the extent that the appellant alleged that her removal was reprisal for

filing OSHA complaints, the administrative judge considered the matter under

both 5 U.S.C. § 2302(b)(8), a provision prohibiting whistleblower reprisal, and

(b)(9)(A)(ii), a provision prohibiting reprisal for the filing of a complaint that

does not regard remedying whistleblower reprisal, but she found the claim

unavailing. ID at 41-42, 45. The administrative judge explained that while it was

undisputed that the appellant filed OSHA complaints, the appellant failed to

prove that her removal could have been retaliation for OSHA complaints, that

there was a genuine nexus between her removal and OSHA complaints, or that her

OSHA complaints contained protected whistleblowing disclosures. ID at 42, 45.

For an appellant to prevail on an affirmative defense of retaliation for

activity protected under 5 U.S.C. § 2302(b)(9)(A)(ii), if she does not allege

reprisal for EEO activity protected under Title VII, she must show that: (1) she

The appellant once again cited her written declaration from below, but no other

evidence of record. PFR File, Tab 1 at 28-29 (referencing IAF, Tab 14 at 26-31).

For the reasons already discussed in this decision and the initial decision, that

declaration is not particularly persuasive. Supra, n.7.

engaged in protected activity; (2) the accused official knew of the activity; (3) the

adverse action under review could have been retaliation under the circumstances;

and (4) there was a genuine nexus between the alleged retaliation and the adverse

action. Mattison v. Department of Veterans Affairs, 123 M.S.P.R. 492, ¶ 8

(2016). On the other hand, under 5 U.S.C. § 2302(b)(8), it is a prohibited

personnel practice to take a personnel action because of any disclosure of

information by an employee that the employee reasonably believes evidences any

violation of law, rule, or regulation, gross mismanagement, a gross waste of

funds, an abuse of authority, or a substantial and specific danger to public health

or safety. Fisher v. Department of the Interior, 2023 MSPB 11, ¶ 5.

In her petition for review, the appellant has not presented any substantive

arguments about her OSHA complaints or the administrative judge’s findings

about the same. She does not, for example, identify any associated evidence of

record, describe the nature of her OSHA complaints, or explain why she believes

they played a role in her removal action.

Based upon our own review of the record, we located some indications that

the appellant filed an OSHA complaint about rodents in the office where she

worked. 9 The complaint alleged that the agency had denied her resulting request

to telework full-time, despite rodent feces throughout the office causing her

months of flu-like symptoms and multiple trips to an urgent or emergency care

center. IAF, Tab 34 at 144-50. The agency provided a thorough response to

OSHA officials that, inter alia, described a physical inspection, the absence of

any physical sign of rodents in the building, and the absence of any other

individuals reporting that they had seen rodents or signs of their presence.

Id. at 142-43. Based upon this limited evidence and the absence of further

The administrative judge seemed to indicate that she did not consider the OSHA

complaint because it was not admitted into the record, and the record was therefore

devoid of any OSHA complaint. ID at 45 n.6 (referencing IAF, Tab 34 at 145, Tab 65).

Because we were able to locate this information in the record and are unable to find any

explanation for why the administrative judge did not admit this evidence into the

record, we are considering the evidence.

argument from the appellant, we agree with the administrative judge’s conclusion

that the appellant failed to meet her burden for her claim of reprisal relating

to this or any other OSHA complaint under 5 U.S.C. § 2302(b)(8) or 5 U.S.C.

§ (b)(9)(A)(ii). See 5 C.F.R. § 1201.115(a).

Reprisal for whistleblowing activities

Under the Whistleblower Protection Enhancement Act of 2012 (WPEA), to

prevail on a prohibited personnel practice affirmative defense in a chapter 75

appeal that independently could form the basis of an individual right of action

appeal, once the agency proves its adverse action case by a preponderance of the

evidence, the appellant must demonstrate by preponderant evidence that she made

a protected disclosure under 5 U.S.C. § 2302(b)(8) or engaged in protected

activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and that the

disclosure or activity was a contributing factor in the adverse action.

Fisher, 2023 MSPB 11, ¶ 5. If the appellant meets this burden, then the burden

of persuasion shifts to the agency to prove by clear and convincing evidence that

it would have taken the same action in the absence of the appellant’s protected

disclosure or activity. Id. In determining whether the agency has met this

burden, the Board will consider all the relevant factors, including the following:

(1) the strength of the agency’s evidence in support of its action; (2) the existence

and strength of any motive to retaliate on the part of the agency officials involved

in the decision; and (3) any evidence that the agency takes similar actions against

employees who did not engage in such protected activity, but who are otherwise

similarly situated. Carr v. Social Security Administration, 185 F.3d 1318, 1323

(Fed. Cir. 1999).

The administrative judge applied these standards and found that the

appellant did not prove that her OSHA complaints contained the type of

disclosure protected by section 2302(b)(8), and we agree. ID at 42-45.

Conversely, the administrative judge found that the appellant’s OIG complaint

was protected under section 2302(b)(9)(C), regardless of its contents.

Id.; see Fisher, 2023 MSPB 11, ¶ 8. She further found that the appellant satisfied

her burden regarding the contributing factor element because the deciding official

testified that he did not remember the appellant’s OIG complaint, but “probably

was briefed” on it at some point. ID at 45-46; Hearing Transcript, Day 3 (HT3)

at 112 (testimony of deciding official).

Because the administrative judge found that the appellant presented this

prima facie case of reprisal under section 2302(b)(9)(C), she shifted the burden of

persuasion to the agency. The administrative judge found that there was

overwhelming evidence in support of the agency’s removal action, there was no

evidence that the deciding official had any motive to retaliate, and there was no

evidence of similarly situated employees who were not whistleblowers. ID at 46.

On review, the appellant correctly notes that the administrative judge’s

analysis discusses the potential motive of the deciding official but no other

individual. PFR File, Tab 1 at 29-30. However, the appellant presents no other

substantive argument regarding her whistleblower reprisal claim.

Nonetheless, we modify the initial decision to supplement

the administrative judge’s Carr factor analysis while reaching the same

conclusion—that the appellant’s whistleblower reprisal claim fails. Like the

administrative judge, we find that the evidence in support of the agency’s

removal action is strong. There is abundant documentary evidence showing how

the appellant was absent from work for many months, culminating with her

AWOL on several dates spanning many more months, despite warnings.

ID at 7-19; supra, ¶¶ 17-24. There is also ample evidence, including numerous

emails and other documentation, showing how the appellant repeatedly defied

simple and unambiguous instructions, mostly as she sought to avoid work and

take more leave than allowed. ID at 23-32; supra, ¶¶ 28-32. Lastly, there is solid

evidence of the appellant engaging in unbecoming conduct towards her

subordinate, including some admissions by the appellant. ID at 19-23;

supra, ¶¶ 25-27. The limited argument or evidence the appellant presented to

defend against these charges was not persuasive. To recall, the administrative

judge did not find the appellant to be credible. ID at 6. Among other things, she

explained how the appellant had an ever-changing story and regularly tried to

manipulate information to create an inaccurate narrative. Id.

We recognize that the administrative judge did not sustain one of the

agency’s charges, about failing to follow policy by recording a meeting without

permission, and one specification of the failure to follow supervisory instructions.

However, these were not particularly consequential in the grand scheme of the

removal action, which spanned many acts over more than a year. IAF, Tab 11

at 4-7.

Turning to the motive to retaliate, we note that although the appellant has

repeatedly referenced OIG complaints, she provided limited details about the

same. Within her petition for review, the appellant’s only mentions of OIG

complaints are cursory ones in which she recounts the wide variety of complaints

she has lodged against the agency. PFR File, Tab 1 at 27-28. While doing so, the

appellant references just one piece of evidence—a declaration by the appellant, in

which she makes no mention of an OIG complaint. PFR File, Tab 1 at 28

(referencing IAF, Tab 14 at 26-31). Elsewhere, in the appellant’s “affirmative

defense brief,” she described her OIG complaint as occurring in February 2018.

Id. at 13. But she did not describe the contents or subject of the complaint, nor

did she point to evidence of the same. Id. Separately, the same pleading includes

a November 2019 email from the appellant to OIG, in which she complains of

years-long harassment that had culminated with her impending removal and the

appellant fearing for her life. Id. at 113-14.

Within her testimony, the appellant described what seems to have been

other OIG complaints about agency officials engaging in sexual harassment.

HT3 at 151-52, 155-58 (testimony of the appellant). There is also testimony from

another witness suggesting that the appellant filed a different OIG complaint at

some point, which alleged that one of her subordinates sexually harassed her—the

subordinate who was subject to the appellant’s unbecoming conduct. HT1 at 168

(testimony of appellant’s subordinate). Finally, the appellant’s closing brief once

again mentions that she filed an OIG complaint, but this time the complaint is

merely identified as occurring in October 2019. IAF, Tab 64 at 18. This closing

brief does not elaborate on the alleged complaint, and it only points to a portion

of the record pertaining to her OSHA complaint about rodents. Id. (referencing

IAF, Tab 34 at 145).

This is just some of the history of complaints described in the record, most

of which we were unable to corroborate with further documentation. The lone

exception we came across is a February 2019 OIG report, in which OIG

concluded that it could not substantiate the appellant’s claim of harassment by a

former supervisor. 10 IAF, Tab 36 at 5-11. Specific to the appellant’s theory of

reprisal, we also came across testimony in which appellant’s counsel asked why

she believed the agency would retaliate for “an OIG complaint,” and the appellant

simply responded that “basically, [it] just turned the heat up on the harassment.”

HT3 at 251-52 (testimony of the appellant).

We acknowledge that relevant officials may have had some motive to

retaliate for any OIG complaint of which they were aware. 11 Broadly, the

appellant was routinely filing complaints about the agency both internally and

with external parties such as the OIG and local police. This was surely

frustrating to at least some agency officials. However, the lone OIG report we

Following her initial complaints about this supervisor, in March 2018, the appellant

was reassigned to a different supervisor in May 2018. ID at 7; IAF, Tab 38 at 10.

For context, the appellant’s conduct unbecoming a supervisor occurred prior to this

change in her chain of command, but all other conduct underlying her removal occurred

nearly a year or more after. IAF, Tab 11 at 4-7. The former supervisor was not the

proposing or deciding official, and he did not testify at the hearing below.

The Federal Circuit has cautioned the Board against taking an “unduly dismissive and

restrictive view” of retaliatory motive, holding that, “[t]hose responsible for the

agency’s performance overall may well be motivated to retaliate even if they are not

directly implicated . . . , and even if they do not know the whistleblower personally, as

the criticism reflects on them in their capacities as managers and employees.”

Whitmore v. Department of Labor, 680 F.3d 1353, 1370 (Fed. Cir. 2012)

found in the record indicated that the appellant’s allegations could not be

substantiated, and those allegations were directed at an individual who played

little if any role in the appellant’s removal. IAF, Tab 36 at 5-11.

Weighing the Carr factors together, we find that the agency would have

taken the same removal action in the absence of the appellant’s protected

whistleblowing activity. 12 Although agency officials may have harbored some

motive to retaliate for the appellant’s protected whistleblowing activity, this is far

outweighed by the strength of the evidence in support of the agency’s removal

action. The appellant’s whistleblower reprisal claim is, therefore, unsuccessful.

Removal was a reasonable penalty.

When, as here, the Board does not sustain all the charges, it will carefully

consider whether the sustained charges merit the penalty imposed by the agency.

Moncada v. Executive Office of the President , 2022 MSPB 25, ¶ 39. The Board

may mitigate the penalty imposed by the agency to the maximum penalty that is

reasonable in light of the sustained charges as long as the agency has not

indicated in either its final decision or in proceedings before the Board that it

desires that a lesser penalty be imposed for fewer charges. Id.

The administrative judge applied this standard and found that removal was

reasonable. ID at 47-50. The appellant disagrees. PFR File, Tab 1 at 30-33.

In particular, she characterizes hers as an unblemished and highly successful

career of 23 years. Id. at 32. The deciding official and administrative judge

accounted for the same, recognizing that this was a mitigating factor, but

concluded that the appellant failed to take responsibility for her misconduct or

show remorse for her actions and was a poor candidate for rehabilitation.

ID at 49; IAF, Tab 10 at 26-27.

As already mentioned, the administrative judge found that there was no evidence

pertaining to the third Carr factor, about similarly situated non-whistleblowers, which

effectively removes the factor from the analysis. See Whitmore, 680 F.3d at 1374.

The appellant separately argues that the deciding official and

administrative judge erred by characterizing her lack of remorse as an

aggravating factor, because this essentially penalized her for mounting a defense.

PFR File, Tab 1 at 33 (citing Raco v. Social Security Administration,

117 M.S.P.R. 1 (2011)). In fact, what the deciding official and administrative

judge found was that the appellant lacked rehabilitation potential because she

failed to take responsibility for her actions or show remorse. ID at 49-50; IAF,

Tab 10 at 29. We agree with that assessment. See, e.g., IAF, Tab 10 at 30-45,

Tab 17 at 5-10. The appellant has not pointed us to anything reflecting otherwise.

This contrasts with the case cited by the appellant, where an employee confessed

to her inappropriate conduct and apologized for it before mounting a defense to

her proposed removal by way of explaining her behavior and identifying

mitigating factors. Racco, 117 M.S.P.R. 1, ¶ 16.

In her petition for review, the appellant has not presented any other

substantive arguments about the reasonableness of her removal, and we find no

basis for reaching a conclusion different than that of the administrative judge.

Among other things, some of the sustained charges are quite serious. See Thomas

v. Department of the Army, 2022 MSPB 35, ¶ 20 (recognizing that the nature and

seriousness of the offense is the most important factor in assessing the penalty).

This includes her conduct unbecoming, which the proposing and deciding

officials described as negative and unequal treatment of a subordinate she

disfavored for a promotion after he was nevertheless selected for that promotion.

E.g., IAF, Tab 10 at 25, Tab 11 at 14. Plus, the appellant holds a supervisory

position, and she repeated some of the conduct underlying this action in the face

of warnings that it would lead to discipline. Id. at 25-26; see, e.g.,

Thomas, 2022 MSPB 35, ¶ 21 (recognizing that supervisors may be held to a

higher standard of conduct). Weighing these and other relevant Douglas factors,

we agree with the administrative judge’s conclusion that removal is a reasonable

penalty for the sustained charges and specifications. See Douglas v. Veterans

Administration, 5 M.S.P.R. 280, 305-06 (1981) (providing a nonexhaustive list of

factors that might be relevant when assessing the reasonableness of the penalty).

NOTICE OF APPEAL RIGHTS 13

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 14 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the